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How to Seal & Destroy Arrest Records California Penal Code 851.8 PC

For innocent people who get wrongfully arrested, California has a process by which you can get your arrest records sealed and destroyed. When you succeed with this process, the police reports, fingerprints, booking photos and all records of the arrest get eliminated. Moreover, you may then legally answer "no" whenever you're asked whether you've ever been arrested.

But the process to seal and destroy arrest records in California is arduous and tricky. It almost always involves a contested hearing before a judge. It pays to have a good attorney on your side.

We're a law firm of former cops and former prosecutors with decades of experience helping clients to clear their criminal records. We'd be glad to help you.

In this article, our California criminal defense attorneys1 explain how to have your arrest records sealed and destroyed by addressing the following:

And it is important to note that a California motion to seal and destroy your arrest records is not a motion that applies to your entire criminal record. It is a motion that must be made and granted specific to each arrest that you wish to contest.

Timing issues

Generally speaking, you can petition to clear your arrest record up to two years after (1) the date of your arrest, or (2) the filing of the accusatory pleading, whichever is later. However, the judge has the discretion to hear cases beyond these time limits based on good cause.3

2. The Process of Sealing and Destroying California Arrest Records

The process of sealing your arrest record typically takes about 90 days. The county in which you live will determine whether you must personally appear in court for the proceedings or whether your criminal defense attorney can appear on your behalf.

Sealing and destroying California criminal records may be either a one or two-step process.

Step 1 - Petition the law enforcement agency for relief

If you were arrested -- but the prosecutor never filed charges against you -- your first step in seeking relief is to petition the arresting law enforcement agency. If you (or your criminal defense lawyer) can convince the police agency that you were factually innocent, the police themselves will seal the arrest record for three years. Once the three-year period has expired, they will destroy the records.4

If the police do not grant your request -- or if they fail to respond within 60 days -- you move on to the second step.5

Step 2 - Petition the court

Once again, this second step is for those people who are denied relief by the police. However, this is the first and only step for those individuals who

had their cases dismissed in court after charges were filed, or

were acquitted by a jury.

And on that note, if (at the time of the dismissal) the judge believes the defendant is factually innocent, he/she may (with the prosecutor's consent) grant the relief on his/her own motion. Similarly, if (at the time of the acquittal) the judge believes the defendant is factually innocent, he/she may simply order the records sealed and destroyed.6

What does "factually innocent" mean?

As San Francisco criminal defense attorney Jim Hammer7 explains, "In order to declare you 'factually innocent', the arrest record must exonerate you, not merely raise a substantial doubt as to your guilt".8

And according to the California Court of Appeals, a finding of factual innocence shall not be made unless no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.9 "'Reasonable cause' is defined as that state of facts that would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime".10

The burden to prove factual innocence is on the defense

Assuming that the judge does not initiate the motion -- and you must petition the court for the requested relief -- the burden is on you to establish that there was no reasonable cause for your arrest. And, unlike the strict rules of evidence that govern a jury trial, California law allows the judge to consider a wide variety of evidence when ruling on this issue.

The court may evaluate police reports, affidavits, and any other evidence which is "material, relevant, and reliable". This even includes evidence that the court previously suppressed pursuant to a Penal Code 1538.5 motion to suppress evidence, as well as any facts that were disclosed after your arrest.

If you meet your burden, it then shifts to the prosecution. If they wish to challenge your motion to seal and destroy your records, they must prove that reasonable cause did, in fact, exist.11 And both sides are entitled to appeal the court's ruling.12

The importance of hiring a skilled California criminal defense lawyer

Because the judge has so much discretion in deciding whether to grant or deny your motion to seal and destroy your California arrest records -- and because the judge can deny your motion with prejudice so that you may not re-file your request -- it is critical to hire a skilled California criminal defense attorney.

An experienced attorney will

thoroughly research your case,

make sure all paperwork is done correctly the first time to ensure that no time is lost due to incomplete or inadequate forms,

conduct the hearing and argue your case to the judge, and

help you contact potential employers to let them know that you are making legitimate efforts to clear your criminal record.

When the police or judge agree to clear my criminal record, how are my records destroyed?

When your California records are declared "sealed and destroyed", the arresting law enforcement agency, Department of Justice, and any local, state, or federal law enforcement agency to which they have released records must

destroy the arrest records, and

destroy the request to destroy those records.13

This means that these agencies must permanently obliterate "all entries or notations upon the records pertaining to the arrest, and the record shall be prepared again so that it appears that the arrest never occurred." If the only entries on your record pertain to the arrest in question, then that document will be physically destroyed.14

That said, if you or a codefendant files a civil lawsuit against the officer or law enforcement agency that made the illegal arrest alleging police misconduct or a United States Code 1983 civil rights violation, the records will not be destroyed until the case is resolved. This allows the otherwise "sealed" records to be "reopened" and admitted into evidence during the civil case.15

Sealing juvenile records is a different process

Sealing and destroying your adult arrest records is a completely different process than sealing your juvenile records. You are eligible to seal your California juvenile criminal record if you are

currently an adult, or the jurisdiction of the juvenile court terminated at least five years ago, and

as an adult, you have not been convicted of any crimes of moral turpitude (that is, crimes that involve dishonesty or immoral behavior), and

there is no pending civil litigation based on the juvenile incident.16

3. The Benefits of Clearing Your Criminal Record

Criminal records are public records. This means that anyone can access another person's criminal history. And numerous private companies have made this information readily and easily available for a nominal fee to anyone who can provide a name and date of birth.

Prospective employers, state licensing agencies, insurance companies, etc. -- anyone who is interested in your criminal history -- can simply run a background check and see your spotted past. Police reports, booking photos, fingerprints...these records don't just go away. The arresting agency and Department of Justice maintain these records indefinitely unless and until you take the appropriate steps to have them destroyed.

And don't be fooled...the fact that your arrest didn't lead to a conviction most likely won't win you any favor.

The fact is that any criminal history -- whether it's merely an arrest or even an acquittal -- will prejudice people against you. And this is particularly hurtful in today's tough economy and job market where it is more difficult than ever to secure employment.

Clearing your record allows you to say you've never been arrested for a crime

That's right. The major benefit of sealing and destroying your criminal record is that when asked, you can legitimately and honestly state that you've never been arrested for a crime. This is particularly important, because many employment, school, housing, loan, and licensing applications don't just ask if you've ever been convicted of a crime, but ask if you've ever been arrested for a crime.

When a judge orders your records to be sealed and destroyed, that is exactly what happens. All evidence of your criminal arrest is destroyed so that there is no record of it.

Once granted, California law provides that "the arrestee is thereby exonerated. Thereafter, the arrest shall be deemed never to have occurred, and the person may answer accordingly any question relating to its occurrence."17

Call us for help.

If you or loved one is charged with Penal Code 851.8 PC and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to how to seal and clear Nevada criminal records. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.18

Legal References:

1Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

2California Penal Code 851.8 PC -- Sealing and destroying records. ("(a) In any case where a person has been arrested and no accusatory pleading has been filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest.(b).If the court finds the arrestee to be factually innocent of the charges for which the arrest was made, then the court shall order the law enforcement agency having jurisdiction over the offense, the Department of Justice, and any law enforcement agency which arrested the petitioner or participated in the arrest of the petitioner for an offense for which the petitioner has been found factually innocent under this section to seal their records of the arrest and the court order to seal and destroy the records, for three years from the date of the arrest and thereafter to destroy their records of the arrest and the court order to seal and destroy such records. The court shall also order the law enforcement agency having jurisdiction over the offense and the Department of Justice to request the destruction of any records of the arrest which they have given to any local, state, or federal agency, person or entity. Each state or local agency, person or entity within the State of California receiving such a request shall destroy its records of the arrest and the request to destroy the records, unless otherwise provided in this section. The court shall give to the petitioner a copy of any court order concerning the destruction of the arrest records. (c) In any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court that dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made.(d) In any case where a person has been arrested and an accusatory pleading has been filed, but where no conviction has occurred, the court may, with the concurrence of the prosecuting attorney, grant the relief provided in subdivision (b) at the time of the dismissal of the accusatory pleading. (e) Whenever any person is acquitted of a charge and it appears to the judge presiding at the trial at which the acquittal occurred that the defendant was factually innocent of the charge, the judge may grant the relief provided in subdivision (b).")

3California Penal Code 851.8 PC -- Sealing and destroying California arrest records. ("(l) For arrests occurring on or after January 1, 1981, and for accusatory pleadings filed on or after January 1, 1981, petitions for relief under this section may be filed up to two years from the date of the arrest or filing of the accusatory pleading, whichever is later. Until January 1, 1983, petitioners can file for relief under this section for arrests which occurred or accusatory pleadings which were filed up to five years prior to the effective date of the statute. Any time restrictions on filing for relief under this section may be waived upon a showing of good cause by the petitioner and in the absence of prejudice.")

4See same. ("(a) In any case where a person has been arrested and no accusatory pleading has been filed, the person arrested may petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest. A copy of the petition shall be served upon the prosecuting attorney of the county or city having jurisdiction over the offense. The law enforcement agency having jurisdiction over the offense, upon a determination that the person arrested is factually innocent, shall, with the concurrence of the prosecuting attorney, seal its arrest records, and the petition for relief under this section for three years from the date of the arrest and thereafter destroy its arrest records and the petition. The law enforcement agency having jurisdiction over the offense shall notify the Department of Justice, and any law enforcement agency that arrested the petitioner or participated in the arrest of the petitioner for an offense for which the petitioner has been found factually innocent under this subdivision, of the sealing of the arrest records and the reason therefor. The Department of Justice and any law enforcement agency so notified shall forthwith seal their records of the arrest and the notice of sealing for three years from the date of the arrest, and thereafter destroy their records of the arrest and the notice of sealing. The law enforcement agency having jurisdiction over the offense and the Department of Justice shall request the destruction of any records of the arrest which they have given to any local, state, or federal agency or to any other person or entity. Each agency, person, or entity within the State of California receiving the request shall destroy its records of the arrest and the request, unless otherwise provided in this section.")

5California Penal Code 851.8 PC -- Sealing and destroying California arrest records. ("(b) If, after receipt by both the law enforcement agency and the prosecuting attorney of a petition for relief under subdivision (a), the law enforcement agency and prosecuting attorney do not respond to the petition by accepting or denying the petition within 60 days after the running of the relevant statute of limitations or within 60 days after receipt of the petition in cases where the statute of limitations has previously lapsed, then the petition shall be deemed to be denied. In any case where the petition of an arrestee to the law enforcement agency to have an arrest record destroyed is denied, petition may be made to the superior court that would have had territorial jurisdiction over the matter. A copy of the petition shall be served on the law enforcement agency and the prosecuting attorney of the county or city having jurisdiction over the offense at least 10 days prior to the hearing thereon.")

6See same. ("(c) In any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court that dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made. A copy of the petition shall be served on the prosecuting attorney of the county or city in which the accusatory pleading was filed at least 10 days prior to the hearing on the petitioner's factual innocence. The prosecuting attorney may present evidence to the court at the hearing. The hearing shall be conducted as provided in subdivision (b). If the court finds the petitioner to be factually innocent of the charges for which the arrest was made, then the court shall grant the relief as provided in subdivision (b). (d) In any case where a person has been arrested and an accusatory pleading has been filed, but where no conviction has occurred, the court may, with the concurrence of the prosecuting attorney, grant the relief provided in subdivision (b) at the time of the dismissal of the accusatory pleading. (e) Whenever any person is acquitted of a charge and it appears to the judge presiding at the trial at which the acquittal occurred that the defendant was factually innocent of the charge, the judge may grant the relief provided in subdivision (b).")

7San Francisco criminal defense attorney Jim Hammer uses his inside knowledge as a former San Francisco Deputy District Attorney to help clients seal and destroy their California criminal records throughout the Bay Area, including San Francisco, Berkeley, Marin County, and Oakland.

8People v. Medlin (2009) 178 Cal.App.4th 1092, 1101.

9See same.

10People v. Bleich (2009) 178 Cal.App.4th 292, 293.

11People v. Medlin at 1101-1102, endnote 6, above. ("In considering the petition, the court applies an objective standard. ( Adair, supra, 29 Cal.4th at p. 905, 129 Cal.Rptr.2d 799, 62 P.3d 45.) The hearing is not limited to the evidence presented at trial. ( Id. at pp. 903-904, 129 Cal.Rptr.2d 799, 62 P.3d 45.) The court may consider any evidence relied upon to arrest and charge, including "declarations, affidavits, police reports, or any other evidence submitted by the parties which is material, relevant and reliable." (� 851. 8, subd. (b).) Even suppressed evidence is considered. ( Adair, at p. 905, fn. 3, 129 Cal.Rptr.2d 799, 62 P.3d 45.) The court may consider facts disclosed after arrest. ( Id. at p. 905, fn. 4, 129 Cal.Rptr.2d 799, 62 P.3d 45.) A person petitioning for a finding of factual innocence has the initial burden to demonstrate the absence of reasonable cause. To meet this burden, the petitioner must show more than a viable defense to the crime. He or she must establish, "'that there was no reasonable cause to arrest him in the first place.' " ( Adair, supra, 29 Cal.4th at p. 905, 129 Cal.Rptr.2d 799, 62 P.3d 45, quoting People v. Matthews (1992) 7 Cal.App.4th 1052, 1056, 9 Cal.Rptr.2d 348.) If this burden is met, the burden shifts to the prosecution to demonstrate the existence of reasonable cause. (� 851.8, subd. (b).)")

See also California Penal Code 851.8 PC -- Sealing and destroying California arrest records. ("(b).Notwithstanding Section 1538.5 or 1539, any judicial determination of factual innocence made pursuant to this section may be heard and determined upon declarations, affidavits, police reports, or any other evidence submitted by the parties which is material, relevant and reliable. A finding of factual innocence and an order for the sealing and destruction of records pursuant to this section shall not be made unless the court finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. In any court hearing to determine the factual innocence of a party, the initial burden of proof shall rest with the petitioner to show that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. If the court finds that this showing of no reasonable cause has been made by the petitioner, then the burden of proof shall shift to the respondent to show that a reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made.")

12California Penal Code 851.8 PC -- Sealing and destroying records. ("(o)(1) This section shall be repealed on the effective date of a final judgment based on a claim under the California or United States Constitution holding that evidence that is relevant, reliable, and material may not be considered for purposes of a judicial determination of factual innocence under this section. For purposes of this subdivision, a judgment by the appellate division of a superior court is a final judgment if it is published and if it is not reviewed on appeal by a court of appeal. A judgment of a court of appeal is a final judgment if it is published and if it is not reviewed by the California Supreme Court. (2) Any decision referred to in this subdivision shall be stayed pending appeal. (3) If not otherwise appealed by a party to the action, any decision referred to in this subdivision which is a judgment by the appellate division of the superior court shall be appealed by the Attorney General. (p) A judgment of the court under subdivision (b), (c), (d), or (e) is subject to the following appeal path: (1) In a felony case, appeal is to the court of appeal. (2) In a misdemeanor case, or in a case in which no accusatory pleading was filed, appeal is to the appellate division of the superior court.")

13See same. ("(b).The court shall also order the law enforcement agency having jurisdiction over the offense and the Department of Justice to request the destruction of any records of the arrest which they have given to any local, state, or federal agency, person or entity. Each state or local agency, person or entity within the State of California receiving such a request shall destroy its records of the arrest and the request to destroy the records, unless otherwise provided in this section. The court shall give to the petitioner a copy of any court order concerning the destruction of the arrest records.")

14California Penal Code 851.8 PC -- Sealing and destroying California arrest records. ("(j) Destruction of records of arrest pursuant to subdivision (a), (b), (c), (d), or (e) shall be accomplished by permanent obliteration of all entries or notations upon the records pertaining to the arrest, and the record shall be prepared again so that it appears that the arrest never occurred. However, where (1) the only entries on the record pertain to the arrest and (2) the record can be destroyed without necessarily affecting the destruction of other records, then the document constituting the record shall be physically destroyed.")

15See same. ("(k) No records shall be destroyed pursuant to subdivision (a), (b), (c), (d), or (e) if the arrestee or a codefendant has filed a civil action against the peace officers or law enforcement jurisdiction which made the arrest or instituted the prosecution and if the agency which is the custodian of the records has received a certified copy of the complaint in the civil action, until the civil action has been resolved. Any records sealed pursuant to this section by the court in the civil actions, upon a showing of good cause, may be opened and submitted into evidence. The records shall be confidential and shall be available for inspection only by the court, jury, parties, counsel for the parties and any other person authorized by the court. Immediately following the final resolution of the civil action, records subject to subdivision (a), (b), (c), (d), or (e) shall be sealed and destroyed pursuant to subdivision (a), (b), (c), (d), or (e).")

16California Welfare and Institutions Code 781 -- Sealing juvenile records. ("(a) In any case in which a petition has been filed with a juvenile court to commence proceedings to adjudge a person a ward of the court, in any case in which a person is cited to appear before a probation officer or is taken before a probation officer pursuant to Section 626, or in any case in which a minor is taken before any officer of a law enforcement agency, the person or the county probation officer may, five years or more after the jurisdiction of the juvenile court has terminated as to the person, or, in a case in which no petition is filed, five years or more after the person was cited to appear before a probation officer or was taken before a probation officer pursuant to Section 626 or was taken before any officer of a law enforcement agency, or, in any case, at any time after the person has reached the age of 18 years, petition the court for sealing of the records, including records of arrest, relating to the person's case, in the custody of the juvenile court and probation officer and any other agencies, including law enforcement agencies, and public officials as the petitioner alleges, in his or her petition, to have custody of the records.")

See also California Welfare and Institutions Code 781.5 -- Sealing juvenile records. ("(k) No records shall be destroyed pursuant to this section if the minor or another individual arrested or cited for the same offense has filed a civil action against the peace officers, law enforcement agency, or probation officer that made the arrest, issued the citation, or commenced the proceedings and if the agency or officer that is the custodian of those records has received a certified copy of the complaint in the civil action, until the civil action has been resolved. Any records sealed pursuant to this section by the court in the civil action, upon a showing of good cause, may be opened and submitted into evidence. The records shall be confidential and shall be available for inspection only by the court, jury, parties, counsel for the parties, and any other person authorized by the court. Immediately following the final resolution of the civil action, records subject to this section shall be sealed and destroyed pursuant to this section.")

17California Penal Code 851.8 PC -- Sealing and destroying records, subdivision "f". Additionally, ("(i)(1) Any finding that an arrestee is factually innocent pursuant to subdivision (a), (b), (c), (d), or (e) shall not be admissible as evidence in any action. (2) Notwithstanding paragraph (1), a finding that an arrestee is factually innocent pursuant to subdivisions (a) to (e), inclusive, shall be admissible as evidence at a hearing before the California Victim Compensation and Government Claims Board.")

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